Aviation and Transportation Security Act

The Aviation and Transportation Security Act (ATSA) was enacted by the U.S. Congress as a result of the September 11, 2001 attacks. ATSA was created within the U.S. Department of Transportation and the Transportation Security Administration (TSA) to oversee civil aviation security. Hence, the central feature of ATSA is federalization of the nation’s transportation security system through creation of TSA. The purpose of the Congress in enacting ATSA was to deploy ATSA’s new security measures as rapidly as possible.

According to the provisions contained in ATSA, the under secretary of transportation for security shall provide for the screening of all passengers and property that will be carried aboard an aircraft. In addition, for flights and flight segments originating in the U.S., the screening shall take place before boarding and such screening shall be carried out by a federal government employee. This screening activity at airports in the U.S. shall be supervised by uniformed federal personnel of TSA. Additionally, to ensure passenger safety and national security, the government shall order the deployment of law enforcement personnel authorized to carry firearms at each airport security screening location.

In AFGE TSA Local 1 v. Hawley, 481 F. Supp. 2d 72 (D.D.C. 2006), the court observed that “the plain text and legislative history conclusively show that Congress did not intend for Aviation and Transportation Security Act (ATSA), to apply to airport security screeners. Instead, in enacting ATSA, Congress intended to vest in the Under Secretary of the Transportation Security Administration authority to exempt airport security screeners from the employee protections of federal personnel laws.”

ATSA confers on the under secretary of TSA the following authorities:

to establish a program for the hiring and training of security screening personnel[i];

to establish qualification standards for individuals to be hired by the U.S. as security screening personnel;

to develop a security screening personnel examination for use in determining the qualification of individuals seeking employment as security screening personnel;

to employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of federal service for security screeners;

to review and revise as necessary any standard, rule, or regulation governing the employment of individuals as security screening personnel;

to design a personnel management system for airport security screeners;

to do so for such a number of individuals as the under secretary determines to be necessary to carry out the screening functions required by ATSA;

to include or not include at the secretary’s discretion provisions of other federal personnel laws, including those in the Federal Aviation Administration’s personnel management system; and

With respect to the selection, training, and employment of security screening personnel, ATSA sets forth certain standards. Congress viewed the task of airport screening as so important that it has outlined specific minimum qualifications to fill the positions. Apart from the minimum qualifications, among the employment standards, a qualified hiring preference is given for veterans of the U.S. armed services[ii].

Further, with respect to the qualification standards, § 111 of ATSA provide that notwithstanding any provision of law, the qualification standards established by the head of the TSA shall require an individual:

to have a satisfactory or better score on a federal security screening personnel selection examination; and

to meet such other qualifications as the head of the TSA may establish.

Apart from basic mental and educational requirements, the statute requires that security screeners daily demonstrate a fitness for duty without any impairment due to illegal drugs, sleep deprivation, medication, or alcohol and possess basic aptitudes and physical abilities, including color perception, visual and aural acuity, physical coordination, and motor skills. These skills include the ability to efficiently and thoroughly manipulate and handle such baggage, containers, and other objects subject to security processing[iii].

In Conyers v. Rossides, 558 F.3d 137 (2d Cir. N.Y. 2009), the court held that “the Aviation and Transportation Security Act (ATSA), Pub. L. No. 107-71, 115 Stat. 597 (2001), mandates that airport security screeners possess: a high school diploma or other equivalent experience; basic aptitudes and physical abilities, including color perception, visual and aural acuity, physical coordination, and motor skills; and the ability to read, speak, and write English well enough to perform various screening-related tasks. The ATSA also requires the Administrator of the Transportation Security Administration to provide a preference for the hiring of an individual as a security screener if the individual is a member or former member of the armed forces.”

Generally, “ATSA offers no guidance on how the TSA should implement a reduction in force, or how to develop or implement its own personnel management system. Instead, ATSA explicitly authorizes the exercise of broad discretion, which is not restrained by the judicial review provisions contained in the Administrative Procedure Act. Accordingly, any judicial review of the TSA’s personnel management systems, specifically its implementation of the employment assessment requirements, would lack both legal basis or legal standard to measure its capriciousness, and would fail to respect Congress’s express intent that the TSA have broad discretion in making employment decisions for security screeners[iv].”